Elian Redux

[Paul Finkelman]

I am certainly sorry for having misread Professor Eastman's posting -- I suppose one should read
e-mail late at night.

He is also correct that Story did not order the Africans returned to Africa; again, a late night
slip-up. However, it seems clear  on the basis of Story's opinion, Marshall's opinion in The
Antelope, treatises, treaties, and other law at the time that the US did not offer liberty to
slaves who escaped to the US.

Eastman also writes:

>     My post did not address whether Cuba is sufficiently totalitarian as to amount to a slave
> state, and while I have some instinct about the nature of communist regimes generally in this
> regard, I will leave debate on that question to the Cuba experts.  I will note, however,
> Blackstone's definition of slavery:  "that civil relation in which one man has absolute power
> over the life, fortune, and liberty of another."  Sounds like a pretty apt description of
> communism to me, Castro's version in particular, whether or not some of the conditions that
> accompanied American slavery are also present.

Even by Blackstone's definition, it is hard to comprehend that all Cubans are "enslaved."  Is
Castro enslaving them all against their will?  It ought to be a pretty easy slave rebellion to
over-throw one old guy enslaving a whole country?

Again, my point is not that Cuba is not repressive, but throwing around terms like "slavery" seems
to be distracting, counter-productive, and a denial of the real history of this country, Cuba, and
other places where slavery existed.  It also does not really do much to describe what life in any
totalitarian nation is.

I think the same would be true for the child abuse analogy.  And, lead the question I raised in a
previous post?  How far do we take this?  Do we offer asylum to all children who come here from
any repressive regime?  Are all children in Cuba "abused?"  The father appears to very much want
to raise his child.  Or, is it abuse to take your child (who was not apparently in any physical
danger in Cuba) and put the child on a leaky boat and float off in shark infested waters?  It
would be different if the Cuban "Gestapo" had been about to take Elian and his mother off to a gas
chamber, then the risk of the boat was worth while.  But, if she was leaving because she does not
like her economic circumstances, does not like the regime, is it not child abuse to subject a
6-year-old to such a journey, when a father was willing and able to care for the child in Cuba?
In other words, if his mother left, not because she was about to be a victim of political
repression, but simply to seek a better life in America, isn't close to abuse to subject a child
to such a risk?  Had she survived, and the child died, and had she been then returned to Cuba (as
we do all the time with Cubanas and Haitians) would the Cuban govt. have been correct in
prosecuting her for child abuse for drowning her child?


--
Paul Finkelman
Chapman Distinguished Professor
University of Tulsa College of Law
3120 East Fourth Place
Tulsa, OK  74104

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E-mail:  paul-finkelman at utulsa.edu